It would appear that lawyer Charles Carreon is not taking the advice of Matthew Inman to take some time off and calm down. He's still going at it. His latest move is a claimed plan to subpoena both Twitter and Ars Technica to find out who created a fake Charles Carreon Twitter account which parodied Carreon's... um... over the top approach to dealing with people making fun of him online. Twitter will get the subpoena, of course, because that's where the account was. Ars' subpoena is because someone signed up for an account on the site claiming to be the guy who ran the fake twitter account. Ars' Nate Anderson contacted that guy by email who said (1) he lives in Sweden, so good luck, Charles and (2) that he stopped parodying Carreon because Carreon's actual statements were so outrageous they didn't need any parody:

"It became clear to me at one point that I could not keep up with Charles," Modelista wrote. "His comments to the press were more damaging to his reputation than any Twitter parody account could ever be. You cannot mock someone who has such a low regard for his own reputation. Before the @Charles_Carreon account was suspended, I was simply linking to his interviews. Satire was not necessary at that point as Charles was providing it."

One wonders what Carreon must think of the parody blog that has been set up to mock him even more mercilessly at Charles-Carreon.com. That one clearly notes that it's a satire account. In the meantime, plenty of people have pointed out that Charles himself seems to have done many of the kinds of things he's now accusing others of doing. Take, for example, his call to waterboard Ben Bernanke. It's clearly satire (though, not particularly good satire in my opinion), but seems just as over the top as anything that Inman or the anonymous Twitter user did to Carreon. Actually, Carreon's piece seems like much more direct incitement. And, seriously, if Carreon should be worried about anyone doing damage to his reputation, he might want to look at the person commenting up a storm on our site (and elsewhere) claiming to be Charles' wife Tara Carreon. She's been much more nasty and angry than anything that was directed at Charles.

On the legal front, the EFF has signed up to help with Inman's defense. I'm wondering if Carreon is even going to be able to find any lawyers to help him out on his case. Once again, we'd suggest that Carreon take a step back, cool off, and think through the massive mistake he's making. If he continues, the term the Carreon Effect might just catch on for real.

It's really quite amazing how frequently those targeted by parody freak out and reach for intellectual property law in an attempt to silence the speech directed at them. The latest is the group "Invisible Children", which became quite famous (or infamous) earlier this year for the viral success of the "Kony 2012" video, which sought to build support for arresting Joseph Kony. Apparently a group of NYU grad students created a website called Kickstriker, which is a parody of Kickstarter, but to pretend that it's a crowdsourcing campaign to hire people to go get Kony.

However, as Wired's Danger Room blog discovered, Inivisible Children doesn't like being parodied. So they sent a cease-and-desist arguing that it violated both their copyrights and trademarks.

“It has come to our attention that you are causing public confusion through your use of Invisible Children’s copyrighted and trademarked property on www.kickstriker.com. This impermissible use is a blatant and egregious infringement of Invisible Children’s valuable copyright and trademark rights,” reads a letter Invisible Children sent last week and acquired by Danger Room. “[F]ailure to cease and desist your unlawful use of Invisible Children’s intellectual property will result in legal action.”

Among Invisible Children’s demands: “Confirm in writing that you have permanently deleted all electronic copies of the unauthorized and infringing materials from any computers, servers, or other distribution media”; take down any links to Invisible Children’s material; and declare “in a prominent location” that Kickstriker is “in no way associated with Invisible Children, Inc. or the Kony 2012 campaign.”

Thankfully, the students behind Kickstriker appear to know that these demands are ridiculous and have replied, with an explanation of fair use. You would think, in this day and age, that someone might have explained all that to the Invisible Children folks before they sent the takedown.

A couple years ago, we wrote about the bizarre case filed by Brownmark Films, who produced the "viral" video "What, What (In The Butt)," against South Park for doing a parody of the video.

The show had actually licensed the song, but the producers claimed that they should have also licensed the video, which is separate from the song (thus, the "singer" was not a part of the lawsuit). Viacom and South Park argued that this was clear parody and fair use and the district court not only agreed, but dumped the lawsuit without a trial on the fair use claim. Some copyright maximalists like to claim that fair use is only a defense to infringement, and thus can only be raised at trial, not earlier in the process. The loss was so complete and thorough, that the court even awarded Viacom legal fees from Brownmark -- something you rarely see in copyright lawsuits, except in the most egregious overreaches.

Brownmark appealed the ruling, and the 7th Circuit has wasted very little time in affirming the lower court ruling, which it calls "well-reasoned and delightful." The appeals court did differ slightly on the reasons a court can dump a case pre-trial when there's clearly fair use, but its quibble is really procedural, concerning which specific process should be used to claim fair use and get a bad case rejected. Either way, the key point stands: you can make your fair use claims upfront, and in truly egregious cases, courts don't have to go through a costly trial. In fact, the court notes that this makes sense, specifically to avoid copyright trolling behavior where defendants feel the need to settle rather than deal with the costs of fighting a bogus lawsuit. This is good news.

In fact, as Paul Levy notes, this may be the first time that an appeals court has specifically used the term "copyright troll," lending additional credence to that phrase:

We noted during oral arguments that such a broad discovery request, surely entailing expensive e-discovery of emails or other internal communications, gives Brownmark the appearance of a "copyright troll."

Similarly, it highlights why such copyright trolling is so problematic:

...infringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.

This seems like a very useful precedent to cite in other such cases.

The court also goes through the fair use determination and says that not only was it proper to drop the case pre-discovery, but the fair use reasoning was perfectly sound. And here, we learn that the 7th Circuit Justices enjoy themselves some viral videos:

Moreover, the episode places Butters' WWITB video alongside other YouTube hits including, among others, the Numa Numa Guy, the Sneezing Panda and the Afro Ninja.

There's a sentence I never thought I'd see in a judicial ruling. There's also a lengthy footnote that, believe it or not, discusses historical South Park episodes that demonstrates that the character Butters "has repeatedly demonstrated a lack of understanding of sex," and goes on to name the specific episodes, including "Cartman Sucks" and "Stupid Spoiled Whore Video Playset."

No matter what, this ruling is a strong victory for fair use... and just in time for our 1pm Q&A discussion about the book "Reclaiming Fair Use." Perhaps the court was just looking to provide some discussion material for us.

The Washington Post is running a rather bizarre op-ed piece from a guy who runs an "internet marketing"/SEO business in which he argues that we need SOPA and CISPA because someone once set up a parody page mocking his business -- something that this guy, Kenneth Wisnefski claims is "an attack":

But after enduring two online attacks to my companies' reputation and databases, I've come to the conclusion that the protection businesses would get from the legislation is worth sacrificing privacy.

About a year ago, my company WebiMax was attacked by a person who stole our logo, created a mock Web site and misappropriated our tagline — Experience, Integrity, Results. He changed it to: "No experience, lack of integrity, no results." He posted commentary about WebiMax that was false and painted a negative image of us.

We got a preliminary injunction and the hosting company pulled it down. Three months later it popped back up on a hosting company in Ireland that works beyond the boundaries of the law. We believe we would not be going through this if the SOPA measure were in effect.

First of all, a parody page is not "an attack." Second, setting up a parody page is not "stealing" your logo. It's just making a copy of it. Most importantly, it's hard to see how there's a trademark issue here, because no one would see that page and get confused. Many, many such "sucks sites" have been deemed perfectly legal when it comes to trademark infringement. Now, there may possibly have been a defamation issue -- depending on what was stated on the website -- but neither SOPA nor CISPA deal with defamation. So, no, the laws would not have helped at all.

From there, he goes on to talk about how in a different company, someone hacked into the company's database and retrieved credit card info. Because of that, he thinks CISPA makes perfect sense, even if it means that the government might get to read his email:

Opponents of the measures raise the privacy concerns stemming from the government’s proposed authority to monitor online activity and shut down Web sites that violate copyright laws.

I agree with that sentiment. I’d hate to have someone from the government reading my e-mails, too. But the reality is the protection the measures could offer businesses are worth the sacrifice in privacy to prevent another worst-case scenario.

Except... having credit card info your company stored exposed has little to do with CISPA. At the very least, it sounds like someone should have followed much better payment database security techniques... such as encrypting the information. That kind of info is widely available to anyone and has absolutely nothing to do with CISPA. If CISPA was in effect when he had that same database setup, it would have done nothing to have prevented the hacking or to help anyone track down who did it.

I fail to see how "the protection measures" are "worth the sacrifice to privacy" when they wouldn't have actually helped in either of the cases he mentioned. And, of course, anyone who thinks privacy and security are "trade-offs" doesn't seem to know enough about either thing. As the slight paraphrase to the old Ben Franklin quote says, "those who sacrifice liberty for security deserve neither."

We've discussed a number of times how ridiculously over-aggressive the Olympics can be when it comes to anything close to an IP issue -- even to the point where it gets host cities to agree to pass exceptional IP laws that only apply to issues that the Olympics chooses. The Olympics are especially concerned with any non-sponsor brand even being seen. That means that non-sponsor brands, even if they're the brand of a toilet, will get "taped over." So you can guess at just how insanely over aggressive the Olympics can be to anyone who comes near its own marks.

And that results in situations like the one where the London Olympics complained about a parody Twitter account, billed as the "official protesters of the London 2012 Olympic Games." This is obviously a joke. It's a parody on the fact that the Olympics seems to find an "official" sponsor of everything, so why not mock it using parody, which is widely seen as protected speech. But, not here. Apparently after the Games complained to Twitter, Twitter suspended the entire account and said it needs to no longer rely on trademarks, like the Olympics' logo.

Except, that defeats the whole purpose. How can you parody something when you're not even allowed to show what it is that you're parodying? Twitter is good on a bunch of issues, but on this one, it looks like it may have rushed ahead and shut down an account too quickly.

It appears that Italian luxury brand Dolce & Gabbana doesn't feel that trademark law has room for jokes. It has sued a small Capetown, South Africa store called "Dolce & Banana." It seems like the shop might have a reasonable parody defense, but in the end, it really is just a joke. Is anyone actually fooled into thinking this shop is somehow connected with the luxury brand? That seems doubtful. Either way, the store has changed its name from Dolce & Banana: To just "... & Banana" Of course, the woman who runs the store, Mijou Beller, apparently took to Twitter asking the luxury firm why it was bothering:

“Dear Stefano, please let us be. And visit us in Cape Town. I have always admired your famous sense of humor so present in your brand and in your designs. And although I appreciate that Dolce & Gabbana is a very successful commercial enterprise, I fail to understand why Dolce and Banana is a threat.”

In the end, it's that final point that is the key. How was this brand doing any damage at all to D&G?

One aspect of fair use that often confuses people is the distinction between parody (which is well-established as fair use in many circumstances) and satire (which is not). The basic distinction is that a parody that makes use of a copyrighted work is doing so to comment on that work, while satire that makes use of a copyrighted work is doing so to comment on something else. The legal reasoning is that in the former situation, use of the work is necessary because it is intrinsic to the commentary, but in the latter situation it is unnecessary because the same commentary could be made in another way.

Unfortunately, the distinction is not always so clear. Illustrator Danny Hellman recently discovered this after completing a series of illustrations in the style of Dr. Seuss for a book about declining job prospects for recent graduates, itself written in the Seussian style (and presumably inspired by the tradition of reciting Seuss' Oh, The Places You'll Go! at graduation ceremonies).

A few months into the project, (after I’d turned in about half of the book’s 80 or so illos) the publisher sent promo materials for the book out to retailers. Apparently, some wicked, Grinch-like person felt compelled to pass these materials along to attorneys who work for the Ted Geisel [Dr. Seuss] estate, at which point this flock of legal carrion birds descended on my publisher much as the Onceler clan does on a newly-discovered forest of virgin Truffula trees.

Okay, enough of the Seuss metaphors. Suffice to say that my publisher was hit with a Cease & Desist letter, and the project was killed, in spite of our well-established First Amendment right to commit parody.

While I'm sure that the estate would have sent a C&D no matter what, in this case the parody defence is likely not as strong as Hellman assumes, because the book was not commenting on Seuss and his work, but rather on an unrelated topic, making it more satire than parody. There's also the possibility that trademarks are involved, which would be a different story, but without actually seeing the C&D it's hard to say. Assuming, as Hellman suggests, copyright is indeed the core issue, this situation is comes down to an even more fundamental question: can an artist's "style" be protected by copyright? Let's take a look at one of the images in question:

Yes, it is distinctly Seussian, but it does not replicate or make use of any of Seuss' actual work. This is an example of the failure of the idea/expression dichotomy that is supposed to be central to copyright law. In theory, ideas are not covered by copyright, only the fixed expression of those ideas, but while some argue that the distinction is clear and obvious, the fact is that's rarely the case. An artist's signature style is, in one sense, a part of the specific expression, but in another sense it is a collection of artistic ideas that dictate expression. If style can be protected, it creates a problematic double standard: could someone, for example, get away with reproducing a Seuss book in full using a different style of art and writing? Unlikely. But if they also can't tell a different story using the Seussian style then... suddenly there is no "idea" side of the dichotomy at all.

The real issue is that it's highly subjective, creating situations where judges must play art critic to determine if something is infringing. So a book like this can easily be killed by a C&D, since the publisher isn't going to risk a lawsuit when they have no clear standard telling them if the work is infringing. That creates a massive chilling effect on art, and gives rightsholders too much power to squash anything they don't like, with or without a firm legal basis.

Lack of clarity on key concepts like parody/satire and idea/expression is one of the biggest problems with copyright law today. When artists have no way of knowing whether something is infringing, it limits their creativity, and everyone is worse off. A firm, clear definition of the idea/expression dichotomy (and one that errs on the idea side, as was always the intent, since fair use is supposed to be what stops copyright from violating freedom of speech) would go a long way towards fixing a broken law.

We've discussed for many years how the Olympics has a ridiculously overaggressive approach to attacking free speech for those who criticize or mention aspects of the Olympics without permission. In most locations that host the Olympics, special extraordinary laws get passed against specific expressions around the Olympics that go beyond ordinary restrictions on speech. London, it seems, has been particularly willing to bend over backwards to appease the International Olympic Committee.

Take, for example, this story of a simple parody video about the 2012 Olympics that has been taken down over claims it violates the Olympics' IP rights. The video is clearly a parody, making use of the 2012 Olympics' creepy mascots, Wenlock and Mandeville, to show them in what appears to be a London riot (using some computer graphics work). The original video got about 90,000 views before being taken down. As the link above notes, there is no right to parody in the UK, so while it may be legal to have the video taken down, it's still ridiculous. The site linked above, LiberalConspiracy.org, insists that it'll keep posting the video if it gets taken down. But, as of the time I write this, I'm embedding the working version of the video, though I wouldn't be surprised if it's gone before too long. Honestly, the video seems pretty tame. Perhaps the Olympics thinks it hurts its "brand" to have such a video, but it sure seems like censoring parody videos does a hell of a lot more reputation damage to the Olympics than a silly parody video of its mascots.

Ah, the "What What (In the Butt)" case continues... you may recall that the makers of the bizarrely viral video >What What (In The Butt) sued Viacom and South Park over their parody video. Here's the original, and then the South Park version below.

The South Park folks had actually licensed the song... but not the video. So it wasn't the singer who was suing, but Brownmark Films, who created the video, saying that the use of the same video was infringement. The court, however, disagreed... and not only found that the video was fair use, but found that the support for fair use was so strong that it didn't even need a trial first, which is pretty rare for fair use decisions.

Now, making matters even worse for Brownmark, the court has also awarded attorneys' fees, meaning that Brownmark will need to pay up some hefty fees to Viacom if it isn't able to win on appeal. The court uses this ruling to once again slam Brownmark for filing an "objectively unreasonable" case:

To begin, the defendants' fair-use argument was very strong, and Brownmark's legal position was objectively unreasonable. The Court took the somewhat rare step of deciding this case at the motion to dismiss stage, precisely because the defendants' fair-use defense was so strong, satisfying all four fair-use factors. First, the Court found that South Park's work was a "clear" parody, which one could gather quickly and easily from watching the episode. Second, South Park's version of the video was transformative, using the series' own characters and a different recording of the song, even if the words and images were similar. Third, even with those similarities, South Park made many changes to the form of the original and used only enough lines to conjure up the original. South Park's use was insubstantial. And, fourth, the Court found that South Park's version of the video would not usurp the market for Brownmark's original. In fact, in this respect, it is most likely that South Park's use would have spurred demand for the original, making the viral video's spread more rapid after its exposure to a national television audience. The satisfaction of these factors shows that the defendants' case was very strong.

Inquiring further, the Court finds that Brownmark's legal positions were also objectively unreasonable, and thus their position was frivolous. To this Court, there is little that could justify the plaintiff's stated view that the South Park version was not parody. Brownmark argues that South Park's clip could be viewed as satire, and would thus require a heightened amount of transformation to be a fair use. (See Pl.'s Resp. Atty. Fee 8-9 (citing Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (1994))). This argument fails for two reasons. Not only was South Park's video a parody, but South Park substantially transformed its version from the original. South Park did not directly copy Brownmark's original video and insert it into the episode;[2] rather, South Park created a video that purposefully mocked the obscure images and song of the original, all in an attempt to poke fun at the original, its viral popularity, and internet crazes as a whole. It may have been intended partially as satire, but also clearly encompassed elements of parody. And, further, given the transformative nature of the use and the lampooning Brownmark's original received, there is ample reason to believe that South Park's use would have greater spurred the market for the original. In the internet era, with information freely and quickly accessible, viewers interested in South Park's version could turn to the internet to find a copy of the original. And any confusion over which version was the original could be supplied to online viewers through a statement at the video's web page. For all of these reasons, the Court finds that Brownmark was objectively unreasonable in its position that South Park's use was not fair.

From there, it gets even worse, saying that the "motivation" for filing the suit is in question as well, and wants to award fees to stop future suits of this nature.

Further, the Court is convinced that Brownmark's motivation in filing this suit was questionable. Not only was Brownmark's position unreasonable, but it also waited nearly two years to file a lawsuit, only after being repeatedly rejected with warnings that South Park's use was copyrighted. (Docket #34, Ex. B). This demonstrates an attempt by Brownmark to use the threat of litigation against the defendants as a sort of "sword of Damocles"—hanging by a thread over the heads of the defendants while Brownmark attempted to extract a licensing fee. Of course, when the thread finally snapped and Brownmark brought this action, the parties quickly found the "sword" to be nothing more than a flimsy replica, as the Court dismissed the case outright at its earliest stage.

Next, the Court also must note that an award of attorneys' fees in this case will deter future actions by those similar to Brownmark; the Court is not entirely comfortable with this fact, though. The defendants in this case are sophisticated business entities with worldwide connections. Brownmark, on the other hand, is a very small company which can hardly bear the same costs as the defendants. Therefore, the Court must walk a fine line between one side of protecting the rights of defendants to parody others' works without being dragged into the legal muck for unreasonable claims and the other side of steering away from effectively robbing smaller plaintiffs of their artistic rights in their own work. While Brownmark's legal action was unreasonable, the Court fears that imposing financial ruination on a small company, like Brownmark, for an attempt to protect its rights might result in similarly-situated plaintiffs with stronger claims refraining from enforcement.

Despite that potential, though, the Court finds that an award of attorneys' fees in this case would deter future action that is similar to Brownmark's. As to the risk of keeping small plaintiffs out of court, the Court notes two things: first, that as important as those plaintiffs' artistic rights may be, the freedom of speech is perhaps of greater concern; and, second, that plaintiffs will not be subject to these fees if they engage in meaningful settlement talks before bringing their suit, work to resolve the case without court intervention, and reasonably consider the defendants' potential defenses.

Because the Court finds that all of the Supreme Court's factors are met, the defendants are entitled to attorneys' fees and costs in this case

In the end, the court takes the $46,775.23 requested in legal fees and knocks it down to $31,525.23. However, it then says it will allow Brownmark to pay significantly less, recognizing that it's a small entity that probably can't afford too much... but that Brownmark needs to show what it is able to pay before it determines the final amount.

Lady Gaga is notoriously protective of her image. So much so, that it often seems that, to her, copyright is not about her music but her image. This attitude has led her to go on the offensive over random things that she (or her people) see as attacks on her image or brand -- such as ice cream. Now, she has taken to task parodies of her songs. While parody is protected in the US under fair use laws, the same cannot be said about the UK.

According to a Guardian report, Lady Gaga has won an injunction against Moshi Monsters developers, Mind Candy, over a parody character name 'Lady Googoo'. Lady Googoo is one of many parody characters in Moshi Monsters. Mind Candy had planned to build upon this character and had gone as far as creating animated music videos parodying songs by Lady Gaga (I have embedded one below for those feeling adventurous and/or masochistic). Unfortunately, Lady Gaga doesn't have a sense of humor about the situation and it appears that neither do the UK courts.

Justice Vos has ruled that Mind Candy cannot play or offer for sale any Lady Googoo songs. However he did rule that the character, Lady Googoo, herself is safe to be included in the game as long as it is not associated with any of the songs.

Lady Gaga stated that this move was to protect her image as people may be confused and think that these parody songs and videos have an official connection to her. In response, Michael Action Smith, Mind Candy's founder, said, "It's pretty obvious that kids will be able to tell the difference between the two characters." I can certainly tell the difference, but Lady Gaga and the courts couldn't.

What is really troubling about this is that it exemplifies what damage can be done when fair use is limited. As UK copyright law is currently written, parody is not legal and many artists are limited because of it. As Alastair Shaw, counsel at law firm Hogan Lovells said:

Tribute bands and parody songs have been around for years but what this case shows is the potential power of registered trademark law to put a stop to some of their activities.

This may be particularly important for tribute acts or characters with names which are similar to the original acts, as they frequently are, who want to comercialise a track parodying a well-known song.

Without parody protection in copyright law, artists like Weird Al would have never become successful. Based on proposed changes to UK copyright laws, this type of parody could be protected in the future. Until the government of the UK takes action, more artists and companies will be harmed through lawsuits such as this. Not only will artists be harmed, but consumers and fans will be as well. As Smith says:

The shame is that millions of kids fell in love with Lady Goo Goo's debut single on YouTube and now won't be able to enjoy her musical exploits. It was all done in the name of fun and we would have thought that Lady Gaga could have seen the humor behind this parody.

So much for humor when faced against copyright laws.